Monthly Archives: September 2013

THE BRITISH GOVERNMENT ARE TRYING TO ACCESS CONFIDENTIAL IRA RECORDINGS
By Danny McDonaldVICE
September 2013

The idea was simple enough: interview paramilitaries from both sides of the The Troubles, record their testimonies and release the interviews sometime after their deaths. For researchers Anthony McIntyre and Ed Moloney, the hope was that the Boston College-funded oral history initiative known as the Belfast Project would bring clarity to what was a particularly murky conflict.

Unfortunately for McIntyre, a journalist and former IRA member who was imprisoned for 18 years, and Moloney, a journalist best known for his coverage of Northern Ireland, shit got complicated. But then it usually does when you mix lawyers, cops, terrorists, academics, politicians and murder.

The researchers now find themselves in a convoluted legal battle where they are pitted against law enforcement authorities on both sides of the Atlantic. The Police Service of Northern Ireland (PSNI) want tapes of interviews with paramilitaries that, they believe, relate to the murder and disappearance of Jean McConville. The Belfast mother of ten was abducted and murdered in 1972 by the Provisional IRA after they suspected that she was a British informant.

The PSNI’s request was passed on to the British authorities, who are now trying to exploit an obscure international agreement known as the Mutual Legal Assistance Treaty to gain access to the interviews. Due to the terms of this treaty, it now falls to the US Department of Justice to wrest these tapes from Boston College, who are the legal owners. However, McIntyre and Moloney are vehemently opposed to this. They say that any breach of privacy could hinder academic research they want to conduct in the future, given that they’d made agreements with the paramilitaries that they wouldn’t release the tapes till after they’d died.

The complicated legal saga has dragged on since 2011. The matter is still in federal court and there has been much wrangling over how many of the 11 interviews – conducted with seven paramilitaries – are even pertinent to the McConville murder. One that was deemed to be was conducted with Dolours Price – a former IRA member who was convicted of a London bombing in 1974 and spent more than 200 days on hunger strike in a Brixton prison. Price died in Dublin last January, and earlier this year, her interview transcripts were handed over to the PSNI.

So why are the PSNI so keen to get their hands on these tapes? McIntyre has speculated that the pursuit of the tapes may be a political ploy intended to somehow damage Sinn Fein president Gerry Adams. Adams has never publicly admitted to being in the Provisional IRA, despite plentyofallegations that he was an integral member of the group’s leadership for decades. The Sinn Fein leader has also been linked to ordering the McConville disappearance, but has vehemently denied his involvement. Now, McIntyre suggests the lawsuit may be a case of old score-settling.

“Certainly it was, in my view, an attempt to cause problems for Gerry Adams. They may believe that there could be information linking him to a number of things he has done that he hadn’t been linked to,” McIntyre tells me. “So I suspect there are people out there to make trouble for him.”

In a statement sent to me, the PSNI bat away such assertions, stating it’s all part of the process of investigating a murder:

“Police have a duty in [sic] investigate murder, a duty in law and a duty under the European Convention. This is an explicit duty to investigate and to explore every available investigative opportunity; political considerations play no part in the decision-making process. Detectives from Serious Crime Branch are currently assessing the materials authorised for release by the United States Appeal Court as part of the investigation into the murder of Jean McConville. As police inquiries are continuing, it would be inappropriate to comment further.”

But McIntyre and Moloney believe that there’s hypocrisy at work. What about all the unsolved murders allegedly carried out by British security forces during The Troubles? Why, they ask, isn’t the PSNI releasing info regarding those? Specifically, Moloney says, they are pursuing crimes that are thought to have been committed by paramilitary outfits like the IRA and the loyalist UVF, while outright ignoring alleged misdeeds of forces like MI5, the Royal Ulster Constabulary Special Branch and the British Army.

“That’s really a declaration by the British that the war with the IRA is still ongoing and that the peace process, in that regard, is a bit of a sham,” says Moloney. A genuine peace process, he continued, would have done one of two things: established a truth and reconciliation commission to investigate everyone or wiped the slate clean of past atrocities in the hope of progressing toward a “greater good”. Neither of those things, he says, is currently happening.

Some of the outstanding question marks, according to McIntyre, include Paddy McAdorey, an IRA member who was killed by a British Army sniper in 1971; Michael Donnelly, who was killed by a plastic bullet in 1970; and Sadie Larmour, who was killed at her home by a UVF gunman in 1979. Information regarding all three of those murders is being withheld by the government, according to McIntyre. That shows the PSNI is motivated by politics, not justice, he says.

Ironically, McIntyre and Moloney are trying to pry information from the very government that is pushing for the release of segments of their own work. The duo have filed Freedom of Information requests seeking war diaries of a British regiment that was stationed in West Belfast for three years during the early 70s. The diaries aren’t scheduled to be made public for decades.

McIntyre says the government wants to control the history of conflict in Northern Ireland.

“Law enforcement wants to be in charge of all information pertaining to the past,” he told me. “They can’t stand for intellectual pluralism. They want a sort of a monopoly over everything and that would mean law enforcement would be investigating law enforcement, which simply doesn’t work.”

Asked if he fears for his safety should the paramilitary interviews be released, McIntyre says, “There’s nothing specific, but one has a general feeling of foreboding of this process, that’s there’s not going to be a good end-result. I think, objectively, it enhances the risk not only to me, but also to the people who participated in the project.”

I was delighted to hear that the former head of the Historical Enquiries Team (HET), former Scotland Yard detective Dave Cox has been forced to take early retirement in the wake of a damning report by the British Inspectorate of Constabulary which found that the HET, under his direction, had treated killings carried out by state forces with less rigour and scrupulousness than paramilitary cases.

The HET, set up in 2005 as part of the peace deal, was supposed to investigate all 3,300 killings between 1968 and 1998. Cox’s sacking is an official admission it failed in this task.

This conclusion will have come as no surprise to readers of thebrokenelbow.com who learned of the HET’s bias and disregard for ordinary victims of violence from two pieces we published back in January 2012 dealing with the case of Patrick McCullough, a 17-year old Catholic who was gunned down by Loyalists near his North Belfast home in 1972. You can read themhere and here.

His case was highlighted by his brother, Catholic priest Joseph McCullough who wrote to The Irish Times about officialdom’s uncaring attitude towards Patrick’s death. No serious attempt had been made by the police, Fr Joe said, to discover who pulled the trigger and the HET’s attitude he described as “abysmal”. The police ineptitude or worse was in stark contrast to the efforts ofIrish News reporter Sharon O’Neill who able to discover not only that the UVF had killed Patrick McCullough but to put names to the killers who, she wrote, were well known in the area as the culprits.

Only when his letter was published and the HET shamed in public did officers from the unit contact him. Fr Joe was also interviewed by thebrokenelbow.com and he told of how after his brother was killed in a drive-by shooting on the Antrim Road, the police – in those days the RUC – never came near the home to explain what happened or to update the family on the investigation.

But the home was visited by the British Army who invaded the street in which the McCullough’s lived. They were ostensibly searching the area for weapons but the only house they raided was the McCullough’s, a respectable, peaceable family with no history of republican activity. Fr Joe suspected they were going to plant weapons in the house to discredit the family and thereby justify the Loyalist killing and would have had the local parish priest not intervened.

All these circumstances strengthened the suspicion that perhaps Patrick McCullough’s killers and the security forces were colluding together. To add insult to injury the RUC then lost all the paperwork on the case and so Patrick McCullough’s sad death was forgotten. I wrote about the case because of the contrast with all the energy officialdom has recently invested in investigating the Jean McConville case where the IRA was the culprit.

The pro-security bias of the HET lies behind the scandalous treatment of the McCullough family and evidence for it can be found in the HET’s official video which is still available on YouTube. This is what I wrote in January, 2011:

The film features four victims, the son of a Catholic shot dead by the UDA; the sister of a British soldier shot dead, presumably by the IRA; the husband of a victim of the IRA’s Shankill Road Fish Shop bomb and the brother of two Catholic men killed by the UVF.

And what’s missing? Well any relatives of people killed by the police or army, that’s who’s missing. Seemingly they don’t rate a mention on the HET video and that is not insignificant surely? It means they don’t really appear on the HET radar and in such a way are almost airbrushed out of existence. The video provides a subliminal and fascinating peek into the HET’s consciousness.

That’s not to say that in the video the HET’s commander Dave Cox does not at all address the issue of security force collusion in killings. He does, but look at how he deals with it: “Could his death have been avoided, was there collusion? Most times we are able to actually answer and dispel those worries.”

In other words: “Our work is about nailing all those terrible terrorists and setting minds to rest about the role of the RUC and army.” It’s an approach that dovetails exactly with the state narrative of the Troubles, with the state and its forces on the good side and everyone else on the bad side. Problem is, it wasn’t ever as simple as that.

And confirmation of this bias was there in the Inspectorate of Constabulary’s report published this July, which detailed all the various ways in which security force killings were treated more leniently than others by the HET (e.g. soldiers who pulled triggers were never interviewed under caution, meaning it would be so much harder to charge them if evidence emerged during questioning of a crime. If they claimed to be sick they could avoid being interviewed, and so on. None of this magnanimity was shown to non-security force suspects).

The pro-Army/Police bias was so intense that it was codified into the rules governing the HET’s investigations. Add to that the fact that the HET’s intelligence branch was stuffed full with former RUC Special Branch officers and the result is all too predictable.

Here is what the HET Operational Guide states:

“HET maintains it is not appropriate to compare the review processes in military cases with reviews of murders committed by terrorists. Soldiers were deployed on the streets of Northern Ireland in an official and lawful capacity, bound by the laws of the UK and military Standard Operating Procedures of that time.” (HMIC report, pp 74-75)

So, there you have it. The official body charged with investigating Northern Ireland’s troubled and violent past is set up on the basis that killings carried out by soldiers were probably lawful whereas those committed by groups like the IRA were crimes. So no need to investigate security force slayings with any enthusiasm or vigour.

It is not possible to deal with this subject without making two comments. One is that the approach of officers like Dave Cox and his colleagues in the HET are confirmation that for many in the British security apparatus the war against the IRA goes on. In theory the peace process was supposed to signal a score draw in the battle between the British state and republicanism; in practice ‘la lotta continua’ in the British mindset. The IRA has stopped shooting soldiers and policemen and stopped planting bombs; but the British are still trying to put republicans in jail.

The other obvious comment is that all this happened on Sinn Fein’s watch but the party charged with overseeing Nationalism’s interests in the peace deal did nothing to stop it, not even to issue warnings about the HET’s all too obvious bias. The HET’s faults were exposed by an academic from a Belfast university not by a Sinn Fein minister or Assembly member (nor any SDLP ones either) and it took seven years to get rid of the man responsible for them. What, one may ask, is the point of being in government if such things are allowed to happen under your nose and you do nothing about them?

Anyway Dave Cox will soon be taking the Liverpool ferry back home. It will be good to see the back of him.

United States Court of Appeals
For the First Circuit
No. 12-1236
IN RE: REQUEST FROM THE UNITED KINGDOM PURSUANT TO THE TREATY
BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND THE GOVERNMENT OF THE UNITED KINGDOM ON MUTUAL
ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE
——————————
UNITED STATES
Petitioner – Appellee
v.
TRUSTEES OF BOSTON COLLEGE
Movant – Appellant
____________________________

The interviews in question were subpoenaed in 2011 by the U.S. Department of Justice in pursuance with the Treaty Between the Government of the United States and the Government of the Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance on Criminal Matters, or Mutual Legal Assistance Treaty (U.S.-UK MLAT). UK authorities requested the tapes in connection with an investigation by the Police Services of Northern Ireland (PSNI) into the 1972 death of Jean McConville.

“[The district court] abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena,” Torruella said in the 29-page decision. He also stated that it was the duty of the courts, and not the federal government, to enforce, delay, or narrow the scope of subpoenas issued under MLAT.

“We are pleased with the appeals court ruling which affirms our contention that the district court erred in ordering the production of 74 interviews that were not relevant to the subpoena,” said University Spokesman Jack Dunn in a statement. “This ruling represents a significant victory for Boston College in its defense of these oral history materials.”

After fighting the original subpoenas, BC has already handed over Belfast Project interviews from former IRA members Brendan Hughes and Dolours Price, both of whom are deceased.

Belfast Project director Ed Moloney, alongside Belfast Project researcher and former IRA member Anthony McIntyre, issued a joint statement shortly afterward in support of the ruling. “From the very outset of the serving of these subpoenas over two years ago we have striven to resist completely the efforts by the PSNI, the British Home Office and the U.S. Department of Justice to obtain any and all interviews from the Belfast Project archive at Boston College,” the statement read. “The [First Circuit Court] said that only interviews that deal directly with the disappearance of Jean McConville can be handed over as opposed to the indiscriminate consignment of the entire contents of interviews with eight of our interviewees. We see this judgement as at least a partial indictment of the whole process.”

The Department of Justice’s contestation of the appeals court decision was not the only issue that Belfast Project faced over the summer. On July 29, The Belfast Telegraph reported that BC was unable to locate a coded key identifying three of the seven interviewees whose tapes are still the subject of the ongoing subpoena case. Moloney, who had been interviewed for the piece, asserted that the coded keys had been delivered to BC’s archivists while the project was underway, suggesting that BC historians were to blame for losing the key. He stated that after moving to New York in 2001, partway through the project’s duration, he was no longer in contact with either interviewee contracts or identification keys. Moloney further said that the transport of those documents from Ireland to the U.S.—a transaction which, by virtue of its sensitivity, had to be carried out in person rather than via post or the Internet—was the responsibility of University personnel.

Two days later, Burns Librarian Robert O’Neill responded to Moloney’s allegation in a letter that was also published by The Belfast Telegraph. “As Ed Moloney well knows, the materials were not lost; rather, they were never received, in clear violation of his contractual obligation,” O’Neill said in the letter. “Ed Moloney has consistently deflected any blame from himself onto me and Professor Thomas Hachey at Boston College. He has made several false allegations against me. The Belfast Project was an opportunity to record the stories of paramilitaries, which otherwise would have been lost to posterity. It was a noble effort. It involved a great deal of work and risk for all concerned and it is sad to witness it devolve into a character assassination in which Ed Moloney refuses to accept responsibility for a project he himself was entrusted to manage.”

Moloney rejoined in an August 5 piece printed in the Telegraph, reiterating his statement that he was never in possession of the donor forms—the contracts that all Belfast Project participants were required to sign before being interviewed. “Dr. O’Neill now accuses me of ‘a clear contractual violation’ by not providing the donor forms,” Moloney said in the piece. “But, if Boston College was in any way concerned about any contractual violation, it failed to either raise the issue with me, or to take any action before the time limits expired for enforcing any obligations in 2012 … [BC] had the opportunity to complain of contractual breach as late as 2011 when the subpoenas were issued and it realised it did not have several donor agreements, but never once did so.” Moloney continued, repeating that as he was living in New York, O’Neill would have been responsible for handling the documents, and concluding that, “Since I never handled the forms, I could not lose them.”

The University maintains that Moloney is still obligated to identify the three participants in question, however. “Project Director Ed Moloney was contractually obligated to supply a key to Burns Librarian Robert O’Neill that identifies the interviewees,” Dunn said. “Boston College’s Attorney Jeff Swope contacted Mr. Moloney’s attorney after the May 31 court ruling to request that he fulfill his contractual obligation. Mr. Moloney has thus far declined the request.”

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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